Judge Says Making It Harder To Exercise Free Speech Does Not Create Substantial Hardship

from the holy-what-now? dept

In a horrifically bad ruling on the attempt by Puerto 80 to get the US government to return its domain while it awaits a trial, a district court judge has decided that there's simply no First Amendment issue at all at this time because someone whose domain is seized by the US government can simply set up shop somewhere else:

"Although some discussion may take place in the forums, the fact that visitors must now go to other websites to partake in the same discussions is clearly not the kind of substantial hardship that Congress intended to ameliorate...."

Yes, the judge is basically saying that the government can block speech so long as you can set up shop elsewhere. The judge cites no precedent for this, other than the judge's own interpretation of the law. Unfortunately, the Supreme Court argues the exact opposite in its Virginia State Pharmacy Board v. Virginia Citizens Consumer Council decision:

"We are aware of no general principle that freedom of speech may be abridged when the speaker's listeners could come by his message by some other means...."

In that decision, the court even specifically notes that "the recipients of the political publications in Lamont could have gone abroad and thereafter disseminated them themselves...," which is what Rojadirecta effectively had to do in changing domain names, and the Supreme Court makes clear that this is still a First Amendment violation.

This ruling is just on the question of whether or not the domain should be returned pre-trial. The judge does note that the First Amendment part can be challenged in the actual upcoming trial, but in the meantime, he's claiming that a clear violation of the First Amendment does not create "substantial hardship." That's quite a ruling and quite a diminishment of the basic principles of the First Amendment.

Separately, as the EFF points out, the judge did not even address the key point raised in Fort Wayne Books v. Indiana, that you cannot use mere "probable cause," in restricting speech, but that it requires a higher bar. The judge just ignores that point entirely. It's quite surprising, and you can bet this will be appealed.

In the meantime, the implications of this are huge and immensely troubling. The reasoning in the ruling means that anyone whose website is seized cannot claim a First Amendment violation at all, because they can just put up a site elsewhere. That's a massive dismantling of the First Amendment. Based on this ruling, and contrary to a long line of First Amendment cases, the government could seize the printing presses from a newspaper it doesn't like by saying that the publisher can just use someone else's. Yikes!

Re: Color me not surprised

It wouldn't be any different from the city roping off part of a public park and saying "you cannot go in here" for whatever reason, or police closing off part of a public roadway for an investigation. There is no first amendment issue, because people are not blocked from expressing their opinions or exercising their rights, just not in that small, designated area.

It's likely the same logic that will be used to show that a small amount of protected free speech doesn't excuse or cover up for scads of illegal or unprotected speech. It's why these sites will likely never get their domains back, and will very likely face prosecution for criminal copyright offences.

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It depends upon why that area is roped off. If that area is roped off because of an unrelated reason, then sure. It's the same thing as saying: No, pouring the blood of orphans on a waterwheel is not an acceptable power generation method even if it is used to power a printing press. But what is going on is more like you standing in the park talking to a crowd and the police showing up and cordoning off the area where you are currently speaking because they want you to shut up. Sure you can walk somewhere else. But that should not be legal.

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Except that the examples you give are all temporary, and are to serve a more common good (safety hazards for example).

Think about what you're arguing for a moment. You're saying that because the government can take away access to property temporarily therefore it's OK for them to remove access to free speech permanently?

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Which is pretty much where we are now in the UK with designated "Protest areas" where people are "kettled" together... I thought the US was founded on greater principals, pity they seem to be eroded at every oportunity to prop up the failing business models of the entertainment industries.

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"It's likely the same logic that will be used to show that a small amount of protected free speech doesn't excuse or cover up for scads of illegal or unprotected speech."

No, it's not 'the same logic'. Your example doesn't really even come close to the issue here. Think back around the Printing Press analogy... it's a lot closer to the mark.

And no one here ever said that the small amounts of free speech excuses the (possibly) illegal, and thus unprotected, speech. We're saying that the First Amendment has been upheld that you cannot block protected speech (no matter how comparatively small it may be) in the effort to stop unprotected speech.

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It wouldn't be any different from the city roping off part of a public park and saying "you cannot go in here" for whatever reason, or police closing off part of a public roadway for an investigation. There is no first amendment issue, because people are not blocked from expressing their opinions or exercising their rights, just not in that small, designated area.

I disagree. There is clearly a First Amendment issue when a website with a public forum gets shut down. The issue is whether the burden is permissible.

It's likely the same logic that will be used to show that a small amount of protected free speech doesn't excuse or cover up for scads of illegal or unprotected speech. It's why these sites will likely never get their domains back, and will very likely face prosecution for criminal copyright offences.

I agree that in the end, the domain names can be forfeited for those very reasons. The more important question though is whether the domain names can be seized in the first place based on only probable cause without running afoul of the First Amendment. The answer to that question is not so black-and-white.

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well, unless that was the area you were using for your speech in the first place. With this ruling there nothing to prevent them from following you around and continuously shutting down your soapbox.... you know, because you can always go someplace else. I can even see this court not having a problem with that because the internet has (effectively) unlimited real estate.

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> It wouldn't be any different from the
> city roping off part of a public park and
> saying "you cannot go in here" for whatever
> reason, or police closing off part of a
> public roadway for an investigation.

The Supreme Court of the United States disagrees with you.

Given the choice of their legal analysis or yours, I feel confident that the former is both more informed and stands the greater of prevailing.

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Wait, we still have liberties? Are you sure you filled out the appropriate liberty licensing form I34X75F in triplicate in order to exercise your liberties for the approved 5 minutes per 30 day period?

This ruling is just on the question of whether or not the domain should be returned pre-trial. The judge does note that the First Amendment part can be challenged in the actual upcoming trial, but in the meantime, he's claiming that a clear violation of the First Amendment does not create "substantial hardship." That's quite a ruling and quite a diminishment of the basic principles of the First Amendment.

I think the judge got it right. Section 983(f)(1)(C) says: "the continued possession by the Government pending the final disposition of forfeiture proceedings will cause substantial hardship to the claimant, such as preventing the functioning of the business, preventing an individual from working, or leaving an individual homeless."

The problem for your pirate friends is that they are claiming that they make $0 from the page views and ads that are on their site. Of course, this is ludicrous, but the problem for them is that if they claim they don't make any money like that then they can't claim that the seizure is taking away their income and leaving them hungry and homeless.

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I think the judge got it right. Section 983(f)(1)(C) says: "the continued possession by the Government pending the final disposition of forfeiture proceedings will cause substantial hardship to the claimant, such as preventing the functioning of the business, preventing an individual from working, or leaving an individual homeless."

I guess we differ on whether or not trampling the First Amendment represents a substantial hardship.

The problem for your pirate friends is that they are claiming that they make $0 from the page views and ads that are on their site. Of course, this is ludicrous, but the problem for them is that if they claim they don't make any money like that then they can't claim that the seizure is taking away their income and leaving them hungry and homeless.

I find it troubling that anyone could think that there's no substantial hardship from a 1st Amendment violation unless it also causes monetary harm. That's not how the 1st Amendment works.

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I guess we differ on whether or not trampling the First Amendment represents a substantial hardship.

It's not our own personal definitions of "substantial hardship" that matter. It's what Congress meant by the term. And from what I've gathered, they meant putting someone out of business, taking food from their children, etc. Shutting down a forum on a website that (probably) criminally traffics in copyrighted materials isn't what Congress meant by a "substantial hardship."

I find it troubling that anyone could think that there's no substantial hardship from a 1st Amendment violation unless it also causes monetary harm. That's not how the 1st Amendment works.

Again, the issue is whether this is the type of "substantial hardship" that Congress intended, and I agree with the judge that it's not. I think the First Amendment arguments have merit. I just don't think they are a "substantial hardship" as the term is meant in the statute. We'll get to the First Amendment stuff soon enough, starting later today when Rojadirecta files their motion to dismiss.

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The issue before the judge was narrow: Did the claimed First Amendment hardships rise to the level of a "substantial hardship" as defined in Section 983? The judge could very well believe that the First Amendment is being violated, yet not think that such a hardship is a "substantial hardship" under the statute.

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> He reached the conclusion that it wasn't a substantial
> hardship because no "lives and livelihoods" were "in peril,"

No, he clearly said it was because people could speak elsewhere:

"Although some discussion may take place in the forums, the fact that visitors must now go to other websites to partake in the same discussions is clearly not the kind of substantial hardship that Congress intended to ameliorate...."

Of course, even if the did use the lives/livelihood standard it's both ridiculous and frightening that we've reached the point where government censorship and restrictions on speech are okay, so long as no one's in danger of death or being wiped out financially.

It only took a little over 200 years for us to go from "Congress shall make no law..." to "Congress can do whatever it likes as long as they don't kill anyone."

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Of course, even if the did use the lives/livelihood standard it's both ridiculous and frightening that we've reached the point where government censorship and restrictions on speech are okay, so long as no one's in danger of death or being wiped out financially.

All it means is that Puerto 80 can't get the domain names back temporarily under the "substantial hardship" exception. If these seizures are unconstitutional, then the court will enjoin the government from doing it again. All is not lost just because it's not a "substantial hardship" as the forfeiture statute defines the term. That was just the previews. The main attraction is just starting.

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You know Mike, I read an re-read your comment here very closely, because I think it is incredibly telling about the way you look at the laws and how you interpret the way they are written.

The "substantial hardship" clause is specific. As the judge noted, it's "preventing the functioning of the business, preventing an individual from working, or leaving an individual homeless". Since the Rojo website is up and running right now, none of these parameters is met.

Quite simply, whatever small free speech restriction that may occur doesn't rise to the level of "substantial hardship". In fact, considering that the Rojo websites are still up, that by itself proves that there may not even be any real first amendment issue.

Remember also, and this is key: First amendment issues only apply to legal, protected speech, and not to illegal acts. You are aware of course that courts have ruled that a small amount of protected speech may be lost in order to take out unprotected, illegal speech.

What concerns me is that you are so concerned about ANY suggestion of a loss of free speech that you think any of it is a hardship. Even in face of the law, you are willing to take such a stand, it makes me wonder where else you have put your thumb on the scale of justice to make it balance your way.

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The "substantial hardship" clause is specific. As the judge noted, it's "preventing the functioning of the business, preventing an individual from working, or leaving an individual homeless".

So, you're saying that's it's OK to take away someone's free speech rights as long they can still work and have a place to live? The hell with that. You've just described most prisons. Yeah, I can see your view of the world. Copyright people like you are truly scary and dangerous and make me think that we really do need to just get rid copyright. Period.

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So, you're saying that's it's OK to take away someone's free speech rights as long they can still work and have a place to live? The hell with that. You've just described most prisons. Yeah, I can see your view of the world. Copyright people like you are truly scary and dangerous and make me think that we really do need to just get rid copyright. Period.

You are truly twisting this. He didn't say it's OK to take away someone's free speech rights. He merely said that that possibility is not a "substantial hardship" as that term is defined in the statute.

You guys (Mike especially) don't seem to understand that when a statute uses a term like "substantial hardship," you can't just use whatever definition of that term you want. You have to look up what that term actually means in that context.

And in this case, Congress meant that something is a "substantial hardship" if it imperils someone's life or livelihood. Puerto 80 couldn't show that imperilment, so there's no "substantial hardship."

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You guys (Mike especially) don't seem to understand that when a statute uses a term like "substantial hardship," you can't just use whatever definition of that term you want

You guys (copyright industry) don't seem to understand that the term "substantial hardship" does not appear in the First Amendment. You can't just use what ever version of the First Amendment that you want.

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You guys (copyright industry) don't seem to understand that the term "substantial hardship" does not appear in the First Amendment. You can't just use what ever version of the First Amendment that you want.

I'm not exactly following you. I'm a strong believer in the First Amendment. I spend a lot of time thinking about it. I think there's an important First Amendment issue with these seizures, and I'm looking forward to seeing it resolved. But a possible First Amendment violation is not a "substantial hardship" as the statute defines that term. Was anyone's life in jeopardy? No. Was anyone being thrown out on the street unable to feed their children? No. Those are the sorts of things the statute defines as a "substantial hardship." The First Amendment issue here is nothing like that.

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That's not exactly the issue. Congress passes lots of laws that impact speech. Courts have devised different tests to determine if that impact is permissible.

If the forfeiture statute is a content-neutral regulation of speech, then intermediate scrutiny is applied. The restrictions on speech it imposes will pass muster provided: "that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).

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Yes, I know. The courts seem to share Congress's peculiar inability to understand the phrase, 'Congress shall make no law...'

I think they're simply acknowledging the reality that practically every law in existence has some effect on speech. Take the forfeiture statute for instance. It provides for the forfeiture of certain property used to commit or facilitate crime. On its face it doesn't regulate speech, but in certain instances of applying the law, there is an effect on speech. Courts have to deal with that somehow, and I think the tests they've devised are practical and useful.

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I'm not exactly following you. I'm a strong believer in the First Amendment.

You're lying.

Was anyone's life in jeopardy?

1. The Bill of Rights protects more than life, it protects rights (or it used to before people like you corrupted things). That's why it's called the Bill of Rights, not the Bill of Life.

2. Someone's life certainly could be in jeopardy if they refused to go along with this (it isn't exactly "voluntary"). Trying to fight off government agents sent to enforce it wouldn't likely turn out very well.

The world would be a better place without people like you. You make me sick. Abolish copyright.

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1. The Bill of Rights protects more than life, it protects rights (or it used to before people like you corrupted things). That's why it's called the Bill of Rights, not the Bill of Life.

Of course the Bill of Rights protects more than life. That's not relevant to whether there is a "substantial hardship" under the statute.

2. Someone's life certainly could be in jeopardy if they refused to go along with this (it isn't exactly "voluntary"). Trying to fight off government agents sent to enforce it wouldn't likely turn out very well.

But no one's life was in jeopardy here, which was the issue.

The world would be a better place without people like you. You make me sick. Abolish copyright.

You don't even know me, but yeah, you've got the world all figured out, and you're the saint. Good for you.

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What is truly funny is to watch people (Mike included) seemingly miss the issue here entirely.

Substantial Hardship is the standard for handing back a seized property or item before the completion of the full court case / trial / whatever.

This standard does not preclude using a first amendment challenge in court as the case goes on, but it sets a very particular and distinct standard to be used while judging if something should be given back pending trial.

Now, if you wanted to, I guess you could argue that the standard somehow violates free speech, but considering the law has been on the books for a long while and nobody has had any success down that road, I would say that the challenge would likely be meaningless and would likely fail.

Why? It's a double deal here: First, you would have to show that the there is legal, permitted, and protected speech being violated (good luck on that with a chat board full of pirates), and then second you would have to prove that the standard for "pre trial release of seized property" violates the first amendment because it specifically hurt protected speech in this case - speech which notably continues to this day.

It would be a losing battle all around.

Yes, you can argue first amendment at every turn in the game, and then you can attempt to climb that mountain. But really, it would be effectively arguing the entire case (which may take years) just to prove if the seizure and holding was legal or not, and then you would still have to fight the entire case again the courts for the criminal aspects of it.

Seems to me to be a losing battle, it would be the wrong place to pick a fight, and is unlikely to generate the desired results, and is more likely to delay justice in any form.

I am not against first amendment rights. But I do understand that the courts have already allowed that some protected speech may be hurt in the process of taking legal action against unprotected, illegal speech. I doubt that the chat board of a pirate website was filled with people discussing the weather, so I am pretty comfortable that significant illegal speech was happened. While innocent until proven guilty does apply, the standards for obtaining a warrant are lower than absolutely proof.

I find it incredibly sad that even Mike doesn't seem to want to understand this.

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Now, if you wanted to, I guess you could argue that the standard somehow violates free speech, but considering the law has been on the books for a long while and nobody has had any success down that road, I would say that the challenge would likely be meaningless and would likely fail.

Substantial Hardship is the standard for handing back a seized property or item before the completion of the full court case / trial / whatever.

But not the only standard. The judge would have easily been within his rights to examine the prior restraint issue. He chose to simply ignore it, and focus solely on the "substantial hardship" requirement.

I am not against first amendment rights. But I do understand that the courts have already allowed that some protected speech may be hurt in the process of taking legal action against unprotected, illegal speech.

If you really were "not against" First Amendment rights, you would realize that no court has ever said this. In fact, they've said exactly the opposite: that any laws against unlawful speech must be "narrowly tailored" to impact only that speech. Anything more is "overbroad," and unconstitutional.

I doubt that the chat board of a pirate website was filled with people discussing the weather, so I am pretty comfortable that significant illegal speech was happened.

Wait, so now discussing sporting events is "illegal speech"? I guess that's what you must mean, since there were not even any allegations that the forums were being used for infringement.

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If you really were "not against" First Amendment rights, you would realize that no court has ever said this. In fact, they've said exactly the opposite: that any laws against unlawful speech must be "narrowly tailored" to impact only that speech. Anything more is "overbroad," and unconstitutional.

That's not exactly what "narrowly tailored" means. From the Supreme Court:

Lest any confusion on the point remain, we reaffirm today that a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate, content-neutral interests but that it need not be the least restrictive or least intrusive means of doing so. Rather, the requirement of narrow tailoring is satisfied “so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.” To be sure, this standard does not mean that a time, place, or manner regulation may burden substantially more speech than is necessary to further the government's legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals. So long as the means chosen are not substantially broader than necessary to achieve the government's interest, however, the regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative. “The validity of [time, place, or manner] regulations does not turn on a judge's agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests” or the degree to which those interests should be promoted.

That's not what's happening here, and it wouldn't apply to situations where lawful speech is suppressed along with unlawful speech.

I'm not saying you're wrong, just that it's not quite the same issue. I thought I remembered a case where the court used the phrase "narrowly tailored" in these situations as well; but I haven't had luck digging it up (I thought it was CDT v. Pappert, but it's not).

Perhaps I was wrong in using that specific phrase, but case law is very clear on this point: protected speech should not be suppressed in the process of prosecuting unlawful speech. In fact, it's more difficult to suppress someone's speech rights than it is to actually arrest them.

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"egulation promotes a substantial government interest that would be achieved less effectively absent the regulation."

Now explain to us how an infective measure protects a "substantial government interest", it does nothing to curb piracy but it burdens free speech and you want us to believe that is what the supreme court said there?

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Evil is as evil does. It doesn't take a saint to recognize it.

Snore. You can't name one thing I've done that's evil, because you don't know me and I haven't done anything evil.

All you can do is make personal attacks against someone you don't know personally. It's obvious to me that you can't address any of my points head on, so you've resorted to the only thing you know: ad hominem attack.

If you want to actually discuss the issues, I'm glad to. But keep your personal, baseless attacks to yourself. It only makes you look bad.

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"You know, I'm generally on your side in this debate, but this sort of obnoxiousness doesn't help anyone. Feel free to vent, but leave the personal attacks out of it, please."

Yeah, especially that "abolish copyright" part. It reminds me of the way everyone jumps all over the occasional person who tries to defend child molesters here, calling them all sorts of things and expressing their disgust with them. All they're doing is making themselves look bad and the child molesters look good. People really need to get over that.

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It reminds me of the way everyone jumps all over the occasional person who tries to defend child molesters here, calling them all sorts of things and expressing their disgust with them.

Oh, please. I'm hardly a copyright maximalist (most A.C.'s say I'm "pro-piracy"), but this is ridiculous. The particular A.C. that is voicing legal theories may be arguing points I vehemently disagree with, but it hardly rises to the level of promoting child molesting.

Honestly, I'm not a copyright abolitionist either. I'm more of a reformer. In general, I think that "all rights reserved" should limited to CC-BY-NC. And, specifically, that copyright law went very wrong starting with 1997's "NET Act," because that's when copyright moved from an industry-specific legal dispute, into an outright war on the general public.

And I would like to voice that opinion without being called a Nazi or a child molester, thank you very much. Obviously I can't do anything but ask nicely... still, most people on these forums are pretty sane and rational, and I'd like to keep it that way if I can.

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You try running an in internet business with the government constantly seizing your domains. Then come tell us how well that business functions.

I think the fact that they were already back up and running on new domain names factored against finding that their business wasn't functioning. I do agree that the judge should have given this part more analysis though. Obviously their business of running a website was prevented from functioning in a significant way, even if they could relocate later.

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Now explain why seizures have to happen when the measures are ineffective as you acknowledge already gloating about it now, which contradicts your own post of the supreme court ruling saying the government should have a functional measure that protects its interests absent of that they should not be able to seize anything that threatens free speech.

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Ahh yes, the final stand of the freetards. Piracy and Racial Equality will always be about the same, right?

Exactly. If you want to change the law, the proper way to go about it is to hire lobbyists, not just go out and break it. Of course, freetards want everything for free, so they're not willing to pay for laws either. They just don't get it.

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I think the judge got it right. Section 983(f)(1)(C) says: "the continued possession by the Government pending the final disposition of forfeiture proceedings will cause substantial hardship to the claimant, such as preventing the functioning of the business, preventing an individual from working, or leaving an individual homeless."

What Congress has to say about it is irrelevant. The Supreme Court has already said it's not allowed. That carries nearly the same weight as the Constitution itself, with the exception that it may be reversed by future Supreme Court decisions. It may not be overruled by Congress, the President, or the combined efforts of both by merely creating a federal statute.

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What Congress has to say about it is irrelevant. The Supreme Court has already said it's not allowed. That carries nearly the same weight as the Constitution itself, with the exception that it may be reversed by future Supreme Court decisions. It may not be overruled by Congress, the President, or the combined efforts of both by merely creating a federal statute.

I disagree. The First Amendment argument might well win the day in the motion to dismiss, but it's not what Congress had in mind when they created the "substantial hardship" claim in 983(f)(1)(C). The judge can't unilaterally decide that the First Amendment issue qualifies as a "substantial hardship" when Congress has defined it otherwise.

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The judge can't unilaterally decide that the First Amendment issue qualifies as a "substantial hardship" when Congress has defined it otherwise.

You're getting it backwards. The real issue is that neither Congress or a lower court judge may overrule the Supreme Court. For purposes of judicial rulings, the Constitution says whatever the Supreme Court says it does. All lower court decisions are bound by Supreme Court precedent.

If a law cannot be interpretted in such a way that it conforms to Supreme Court precedent, it is unconstitutional. If it can be interpreted in a way that it's consistent with those precedents, it must be. The Constitution, and by extension the Supreme Court's interpretation of the Constitution, trump all other considerations. And yes, that includes Congressional intent, an issue which is specifically addressed in Marbury v Madison.

It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.

Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.

Existing precedent from the Supreme Court states that the government must prove a compelling public interest for prior restraint. Fort Wayne Books v Indiana specifically says probable cause does not qualify as proof. Since the law states there are exceptions, either violating the Constitution must be an exception or the law is unconstitutional. In either case the seizure is unconstitutional.

The only unilateral decision being talked about here is the one this judge made to ignore the Supreme Court, and by extension the Constitution.

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Be that as it may, a First Amendment violation is not a "substantial hardship" under 983(f)(1)(C). It's really that simple. This is true even if the seizures are unconstitutional. The judge isn't overruling the Supreme Court in any way. Nor is he ignoring anything that they've said.

The judge is only saying that the First Amendment issue is not a "substantial hardship" under the statute. Nothing more.

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A ruling based on the Congressional intent behind a law, while ignoring Supreme Court precedents which specifically forbid that interpretation is beyond the judge's authority. Decisions from the Supreme Court are the same as the Constitution itself for this purpose. They are the law, and just like any other time 2 laws come into conflict, the judge is required to consider both. Since the Constitution always takes precedence over a statute, when they come into conflict he is required to either interpret the statute in a way that eliminates the Constitutional conflict or, if that's not possible, declare it unconstitutional.

Once again, from Marbury v Madison

So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

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A ruling based on the Congressional intent behind a law, while ignoring Supreme Court precedents which specifically forbid that interpretation is beyond the judge's authority.

The judge did not ignore any Supreme Court precedents. The issue before the judge was whether this was a "substantial hardship" on Puerto 80. The constitutionality of the seizures was not the issue. That issue will be coming up next.

Decisions from the Supreme Court are the same as the Constitution itself for this purpose. They are the law, and just like any other time 2 laws come into conflict, the judge is required to consider both. Since the Constitution always takes precedence over a statute, when they come into conflict he is required to either interpret the statute in a way that eliminates the Constitutional conflict or, if that's not possible, declare it unconstitutional.

Again, you seem to be missing the fact that the constitutionality of the seizures was not the issue the court was addressing. These seizures may be unconstitutional, but that is a separate issue.

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I'm sorry, but I'm not understanding you. What exactly did the judge do that Marbury says he couldn't? And the judge has said that he will address the constitutionality of the seizures in Rojadirecta's motion to dismiss. Nowhere does it say that he had to address that here in the 983 petition.

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If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

He must apply the Constitution. Period. Not may, not can, but must. That means he must apply relevant Supreme Court decisions. Instead he answered the 1st Amendment question with a red herring. He claimed the speech didn't qualify for first amendment protection because a legislator didn't intend it to be covered by substantial hardship exclusion. In other words he admitted that his ruling on a Constitutional question was dictated by Congress, which directly contradicts Marbury.

Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.

This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory.

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He claimed the speech didn't qualify for first amendment protection because a legislator didn't intend it to be covered by substantial hardship exclusion.

But that's not what he said. He only said that Puerto 80 hadn't demonstrated a "substantial hardship." Their protected speech still qualifies for First Amendment protection, and as he indicated, that will be the issue he addresses next after the briefs are in on the motion to dismiss.

In other words he admitted that his ruling on a Constitutional question was dictated by Congress, which directly contradicts Marbury.

All he said was that the issue before him was whether there was a "substantial hardship." Having decided that there wasn't, he said he'd look at the constitutional issues in the motion to dismiss, which was already in the works. The parties met the other day with the judge, and they already agreed on a briefing schedule. The judge will use all the power Marbury gives him to decide whether the Constitution has been violated in the motion to dismiss.

Re:

I don't think that's accurate.

Here's what the judge said about the First Amendment:

Puerto 80’s First Amendment argument fails at this juncture as well. Puerto 80 alleges that, in seizing the domain names, the Government has suppressed the content in the “forums” on its websites, which may be accessed by clicking a link in the upper left of the home page. (Pl. Mem. 10.) The main purpose of the Rojadirecta websites, however, is to catalog links to the copyrighted athletic events — any argument to the contrary is clearly disingenuous. Although some discussion may take place in the forums, the fact that visitors must now go to other websites to partake in the same discussions is clearly not the kind of substantial hardship that Congress intended to ameliorate in enacting § 983. See 145 Cong. Rec. H4854-02 (daily ed. June 24, 1999) (statement of Rep. Hyde) (“Individuals lives and livelihoods should not be in peril during the course of a legal challenge to a seizure.”). Puerto 80 may certainly argue this First Amendment issue in its upcoming motion to dismiss, but the First Amendment considerations discussed here certainly do not establish the kind of substantial hardship required to prevail on this petition.

What's he's saying is that even if there are First Amendment issues, that doesn't rise to the level of a "substantial hardship" under Section 983(f)(1)(C).

He most certainly did NOT say "there was no first amendment issue" as you are claiming.

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OMG.... A troll with blinkers on and one who reads things that aren't there... Please let us know where we can find this information on Techdirt where Mike cheers the removal of artists rights? I for the life of me cannot find it... I can find numerous posts where Mike tries to help artists come up with new 21st century business models and tries to explain to industries how they can counter the "pirate/freetard model" with innovative products that offer the customer something of value... but, but... you're not interested in any of that are you?

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There is no removal of free speech rights, rather a judge who can clearly read the law and understand what is in it. Since there is no proof of "substantial hardship", there is no first amendment issue at this point.

You need to understand Mike that the first amendment issues may yet come to the fore later in the discussion, but for the porposes of opposing a seizure pending a legal process, they don't make it to the standard set by congress.

What you would be asking the judge to do is to ignore the standards set and upheld over the years by various courts, and to create a whole new free speech issue, which would essentially make any seizure of anything by law enforcement illegal.

There is a line drawn in the law, and supported by the courts. Stop whining when a court enforces the law.

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SCOTUS has made no ruling that I am aware of in this case. The law is the law, clear as a bell. Can you clearly say that there is "substantial hardship", as defined by law, in this case? The judge was unable to find such a hardship, and ruled accordingly.

Can you explain why you think this ruling overrules something from SCOTUS?

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If the judge can't see the hardship is because he doesn't want to, because being forced to find a lawyer in another country to defend oneself from things that are legal in ones own country sure as hell doesn't look like the good life to me.

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Didn't read into that too far, did you?

"This ruling is just on the question of whether or not the domain should be returned pre-trial. The judge does note that the First Amendment part can be challenged in the actual upcoming trial, but in the meantime, he's claiming that a clear violation of the First Amendment does not create "substantial hardship." "

The judge here is saying that it's not clear whether it's a First Amendment violation... just that even if it is, it does not represent a 'substantial hardship'.

But hey, gives you a chance to take another swing at Mike and all us 'freetards', so who cares about facts, right?

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After months of being told there was no first amendment issue, a judge finally slaps down Masnick's idiotic FUD.

The judge did not say there was no First Amendment issue. He said that, whatever the First Amendment issues may be, they don't raise to the level of "substantial hardship" required to return seized property.

In fact, he specifically said there could be First Amendment issues: "Puerto 80 may certainly argue this First
Amendment issue in its upcoming motion to dismiss..."

Re: Re: Re: If this isn't a substantial hardship...

That could certainly be considered a hardship, but it's not the type of "substantial hardship" that's implicated in the statute. The statute gives these examples of substantial hardships: "preventing the functioning of the business, preventing an individual from working, or leaving an individual homeless." An inability to express yourself on one website just isn't "substantial" enough.

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The First Amendment is important, but a violation of the First Amendment is not what Congress had in mind when they provided for the return of seized property pending the outcome of forfeiture hearing when there's a "substantial hardship."

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I don't honestly know why they seized a domain name from an organisation declared legal in its home county using servers based in another... I use the site to watch sports that no one wants me to pay for here in the UK, I've offered to pay but then just say I can't as I don't live in the US...

The didn't manage to take down the site or curtail its traffic did they. They just removed one of the many ways to get to it. If you want to take a site down you have to actually take the servers it runs on, what ICE did was take the number plates off the car but didn't take the car.

Re: Re: Re: Re: Re: Re: If this isn't a substantial hardship...

Why do you think they seized the domain names?

The government is seizing domain names in order to demonstrate a capability.

If you remember, Bank Julius Baer v Wikileaks generated controversy and headlines. It ignited a slashdot mini-rebellion. People demonstrated the government did not have the power to seize that domain name, at that time.

In the present case, the government is now demonstrating that they can be patient, and more effective over the long term than the fickle mob. The government will probably win—in the short term. Not enough people see or care. And if the government does not overreach themselves... ... But once a government tastes censorship, it usually becomes intoxicated. Reaches for more. So the government will overreach.

Then we will see if the internet press has the power to ignite a furious rebellion.

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It will be interesting. I think it's important to keep in mind that they seized these domain names because they believed the websites were being used to commit crimes. I don't think it's an attempt to take away our constitutional rights. In fact, I'd say the aim is to protect people's rights. If the method they've chosen violates anyone's rights, they should be held to task for that. I don't think that's their intent by any measure though.

Implications not "huge" or "immensely troubling".

"This ruling is just on the question of whether or not the domain should be returned pre-trial." -- So it's easily reversible and has no obvious effect on justice obtainable.

Puerto 80 is accused of using a particular soapbox to facilitate -- well, I omit so as to not show prejudice -- to do something; the gov't has seized that soapbox as evidence besides means. But Puerto 80 is free to set up another soapbox identical in function to first (at least so far as 1st Amendment goes), no more difficult of access, so it is not prevented from complaining about the 1st or of saying whatever it wants.

I use "soapbox" because physically a 2nd could be placed right next to 1st without the least problem for listeners, and it's close as analogy can get (though all analogies are bad). The web makes broadcasting easier, yet if one is selling contraband, the associated means doesn't get excluded because of the magic of "teh internets".

Puerto 80 will get its day in court, and if the underlying charges are sustained, then it surely doesn't get the "property" back. As the /value/ of the website name looks on the surface to have come from facilitating -- whatever -- then it's inextricably linked. -- That's just the way things work: when you get charged, the gov't gains advantages. -- I've no worries from /this/ that courts will suddenly go wild as Mike alleges; quite narrow and specific circumstances.

And -- as you guys so frequently say: Puerto 80 can just open up another website and continue! So why isn't that touted ability enough /while/ the legalities are being settled? (I also predict that the trial will go adversely to Mike's views and render this yet more academic.)

Re: Implications not "huge" or "immensely troubling".

"I use "soapbox" because physically a 2nd could be placed right next to 1st without the least problem for listeners"

In the physical world if you planned an event in a park only to find an hour before your planned even the police roping off the area saying that you can't make your speech here you can set your soap box right next to the barrier, your listeners can easily find you, they know roughly where to go look.

In the ONLINE world, yea you can easily setup another soap box up on the same server, on the same hard drive, or one IP address off from your original, but your listeners will have NO IDEA where to find you. Other than typing in random strings of text into their browser URL and hoping to get lucky THERE IS NOT ONE SINGLE METHOD for an average person to follow you. To head off the obvious, Bing and Google other search engines DO NOT COUNT as a method of redirecting people because they are private companies.

Re: Re: Implications not "huge" or "immensely troubling".

So you deny the existance of twitter, facebook, linked in, and thousands of other social sites which could spread the word of a new domain in minutes?

It isn't as if the Rojo people had to go and call each user personally, or perhaps send someone to knock on the doors to be able to explain to them the address change. Whatever harm may have happened is easily repairable and easily taken care of. They claim their traffic is down 30%, well, perhaps its people realizing that the site may be illegal and are just staying away.

Terrible, but not as terrible as it could be

Yeah, this is certainly a bad ruling. The dismissal of First Amendment hardship directly contradicts several Supreme Court rulings; not only VA State Pharmacy Board v. VA Citizens Consumer Council, but also Schneider v. New Jersey. Probably more. Also bad is that the judge didn't even address the fact that protected speech cannot be shut down merely with a warrant.

The judge seemed to focus solely on the strict definition of "hardship" that requires the return of seized property (other than speech-related property). That is a high bar, requiring that the seized property e.g. result in the entire shutdown of a business. But even here, he makes some mistakes. For example, read the judge's ruling about the economic hardship suffered by Rojadirecta:

Puerto 80 does not explain how it generates profit or argue that it is losing a significant amount of revenue as a result of the seizure. Specifically, Puerto 80 states that it does not generate revenue from the content to which it links, and it does not claim to generate revenue from advertising displayed while such content is playing. (Seoane Decl. ¶ 5, 10.) Accordingly, the claimed reduction in visitor traffic does not establish a substantial hardship for the purposes of § 983(f)(1)(C).

That is a bit disingenuous; Puerto 80 is not claiming that it doesn't make any profit, simply that the profits it does make are unrelated to third-party streams. Puerto 80's petition does say that it makes profit from other sources, though it does not say what those sources are, or how the loss of traffic would impact them. This is, perhaps, an oversight on Rojadirecta's part, but you would think the judge would at least consider it.

Furthermore, he does not even consider the idea that Rojadirecta's activities - even if the Government's allegations are true - are not criminal. Nor does he address how none of the other conditions necessary for seizure are present.

There is some good news, though. Judge Crotty does not dismiss the First Amendment arguments out of hand. Nor does he decide that the alleged activities are criminal. In essence, he's punting until Puerto 80's motion to dismiss. Furthermore, Puerto 80 can now quote the judge himself to show that there's no commercial infringement.

So this decision, bad as it is, is just a small bump in the road. It's terrible, but not as terrible as ICE and the "IPtards" would like. It's still pretty likely that Puerto 80 will ultimately prevail.

Re: Terrible, but not as terrible as it could be

The dismissal of First Amendment hardship directly contradicts several Supreme Court rulings; not only VA State Pharmacy Board v. VA Citizens Consumer Council, but also Schneider v. New Jersey. Probably more.

But none of those cases say that a First Amendment hardship is a "substantial hardship" under Section 983(f)(1)(C), and that was the issue before the judge. Sure, there might be a First Amendment hardship, but the point is that it's not a "substantial hardship" under the statute.

Re: Re: Terrible, but not as terrible as it could be

But none of those cases say that a First Amendment hardship is a "substantial hardship" under Section 983(f)(1)(C), and that was the issue before the judge.

True, but both flatly contradicted the reason why the judge found the seizures did not constitute "substantial hardship."

Let's take a hypothetical situation. Let's say the Government did not seize the domain names only, but also the servers, so that the forums are blocked altogether. For the sake of argument, assume there is no financial hardship involved. Would First Amendment concerns, by themselves, justify a finding of "substantial hardship" in that situation?

For the judge to be consistent, he would have to answer "no." Because according to the Supreme Court, there is no fundamental difference between shutting down a single source of particular speech, and shutting down that particular speech altogether.

In fact, if this ruling stands, I'm betting that's exactly what will happen. ICE or the DOJ will seize entire servers full of protected speech, and cite this ruling as evidence that there are no First Amendment concerns at all.

Re: Re: Re: Terrible, but not as terrible as it could be

Would First Amendment concerns, by themselves, justify a finding of "substantial hardship" in that situation?

For the judge to be consistent, he would have to answer "no." Because according to the Supreme Court, there is no fundamental difference between shutting down a single source of particular speech, and shutting down that particular speech altogether.

Right, the answer would be "no." It's because even if this offends the First Amendment, it's not a "substantial hardship" for purposes of 983(f)(1)(C). Whether or not the Supreme Court says "there is no fundamental difference between shutting down a single source of particular speech, and shutting down that particular speech altogether" is irrelevant.

The issue here is quite simple: Was the alleged hardship here the type of "substantial hardship" that Congress intended when they wrote the statute. The answer is "no."

Notice how Puerto 80 didn't cite a single case that says otherwise. Nor can they.

In fact, if this ruling stands, I'm betting that's exactly what will happen. ICE or the DOJ will seize entire servers full of protected speech, and cite this ruling as evidence that there are no First Amendment concerns at all.

I believe they are seizing servers when possible. But they won't point to this and say "that there are no First Amendment concerns at all," since, as you already indicated, the judge did not in any way, shape or form actually say that.

Re: Re: Re: Re: Terrible, but not as terrible as it could be

Right, the answer would be "no."

And here you see how this is a terrible ruling. According to Judge Crotty, any First Amendment concerns about ex parte seizures must meet the high bar set by the "hardship" requirement. Anything less is not prior restraint.

If allowed to stand, it pretty much does away with Ft Wayne Books v. Indiana, Quantity of Books v. Kansas, and maybe even Near v. Minnesota itself.

But they won't point to this and say "that there are no First Amendment concerns at all," since, as you already indicated, the judge did not in any way, shape or form actually say that.

That won't stop ICE or the DOJ (or whoever) from claiming that he did, and acting accordingly.

Re: Re: Re: Re: Re: Terrible, but not as terrible as it could be

And here you see how this is a terrible ruling. According to Judge Crotty, any First Amendment concerns about ex parte seizures must meet the high bar set by the "hardship" requirement. Anything less is not prior restraint.

That's not what he's saying at all. It can still be prior restraint and yet not be a "substantial hardship" as Section 983 defines the term.

If allowed to stand, it pretty much does away with Ft Wayne Books v. Indiana, Quantity of Books v. Kansas, and maybe even Near v. Minnesota itself.

This ruling doesn't contradict those cases in any way.

That won't stop ICE or the DOJ (or whoever) from claiming that he did, and acting accordingly.

I don't see much use in speculating about such things. Let's look at what they actually are saying, and not at what they maybe could one day argue.

Re: Re: Re: Re: Re: Re: Terrible, but not as terrible as it could be

It can still be prior restraint and yet not be a "substantial hardship" as Section 983 defines the term.

He's also saying that "substantial hardship" is the only reason to return seized property at this point, even if that seizure results in prior restraint. In other words, prior restraint cannot be used as a reason to return seized property prior to a motion to dismiss.

You don't find this problematic? I certainly do. I could be wrong, but I believe it was at this stage in the proceedings that the Ft. Wayne (&etc) seizures were declared unconstitutional. If so, then the judge flatly contradicts those rulings.

Let's look at what they actually are saying, and not at what they maybe could one day argue.

I would, but that would just lead to another argument about Arcara (which ICE is citing).

Re: Re: Re: Re: Re: Re: Re: Terrible, but not as terrible as it could be

He's also saying that "substantial hardship" is the only reason to return seized property at this point, even if that seizure results in prior restraint. In other words, prior restraint cannot be used as a reason to return seized property prior to a motion to dismiss.

That's true for the moment, but don't worry. Just because a prior restraint is not a "substantial hardship" doesn't mean that prior restraint can't win the battle. If this is in fact prior restraint, the government won't be able to do it any longer.

You don't find this problematic? I certainly do. I could be wrong, but I believe it was at this stage in the proceedings that the Ft. Wayne (&etc) seizures were declared unconstitutional. If so, then the judge flatly contradicts those rulings.

It was a different scenario in Fort Wayne Books. There, the store was closed pursuant to an injunctive order. This doesn't contradict those rulings in any way.

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If this is in fact prior restraint, the government won't be able to do it any longer.

That is not what this ruling suggests. Even if it is in fact prior restraint, the government will be able to do it whenever they like, and it can only be "undone" after (and if) the defendants file a motion to dismiss.

Sure, the seized domains might be eventually returned - but there's nothing preventing ICE (or whoever) from seizing them in the first place.

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That is not what this ruling suggests. Even if it is in fact prior restraint, the government will be able to do it whenever they like, and it can only be "undone" after (and if) the defendants file a motion to dismiss.

Sure, the seized domains might be eventually returned - but there's nothing preventing ICE (or whoever) from seizing them in the first place.

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He can certainly rule that the forfeiture statute as applied is unconstitutional, right?

Yes, but it seems that if he was going to do that, this would be the time when he would.

It may still be (and I hope it is) that he will find this particular seizure unconstitutional - but that may or may not apply to the other seizures. In other words, it may be that he will find that its constitutionality be decided on a case-by-case basis (which would lead to the situation I described above), and not be unconstitutional on its face (which would prevent the government from doing it again).

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It may still be (and I hope it is) that he will find this particular seizure unconstitutional...

Karl,

I am not optimistic. This judge will probably side with power and favor monopoly.

Even if he doesn't, the damage is done, and can't be fixed.

So, what to do? At this point, a significant number of the world's nations favor transferring the DNS root to international control. In the past, those people in favor of the current ICANN/Commerce Department arrangement have pointed to the strong US record in protecting free speech. That argument is now shattered.

As an American, I now agree that our courts cannot be trusted to uphold the first amendment in DNS matters: Thus, I have changed my former position. I am now in favor of international control of the DNS root zone.

Is it enough to simply withdraw support for American dominance, or can something more be done? If so, then what?

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I am not optimistic. This judge will probably side with power and favor monopoly.

I am a little more optimistic than you. Judges (unlike Congressmen) are not paid off by corporate interests. Will he still do the right thing? I don't know, but I hope so. The judges in the Righthaven cases certainly are doing good things.

I have changed my former position. I am now in favor of international control of the DNS root zone.

I am also American, but I have always favored international control of the DNS root zone. Or, more accurately, that control should reside outside of any government whatsoever. Kind of like the W3C.

Up until now, the government has actually been pretty good (though not perfect) about keeping a hands-off approach to the Internet infrastructure. The last couple years have seen a push towards what I believe is disastrous. Even if the U.S. government does retain control, moves like this will just push the worldwide tech sector to set up something outside of the U.S. That certainly won't help our country in the least.

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In one sense he did punt the issue. Not to worry, though since he'll be addressing that issue next. The first brief is due today, and the final brief by Sept. 2. We'll have an answer from the judge squarely on the First Amendment issue here soon enough.

Re: Re: Terrible, but not as terrible as it could be

Re: Re: Re: Terrible, but not as terrible as it could be

If the abridging of Constitutional rights are not a "substantial" hardship, I'm not sure what actually is.

That's been my whole point. It doesn't matter whether we think that something sounds like a substantial hardship. The judge is constrained by how Congress defined the term "substantial hardship." The law doesn't work if judges get to make up their own definitions of things. You have to look at what the definition is, not at what you think it should be.

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The law uses the term "such as", not "only" or "limited to". The listed hardships are likely examples, not strict definition and limitation on when something can be considered substantial hardship.

This is a case where a large part of any definition of harm that can be attributed to the seizures will involve speech. the idea that abridging of speech ex parte cannot be considered substantial does indeed appear to counter the rulings pointed out earlier, in which various forms of the argument "you cannot limit speech without determination that the speech is infringing/obscene" are now made less important than a slightly vague definition of substantial hardship in a seizure law.

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Yes, the list in the statute is illustrative. And what it illustrates is that a possible prior restraint is not what Congress intended to mean a "substantial hardship."

A prior restraint may be a hardship that is substantial, but that does not mean it is a "substantial hardship" under the statute. The judge cites to the congressional record as further evidence of what Congress intended, and a prior restraint just wasn't it.

When the domains were seized, there was a lot of discussion here. For the most part, it seems that the seizures weren't of anything significant (no servers, no content, no "printing press" as it were, just that the sign on the front door with the address was taken down (but still accessible to anyone who knew where to look, the IP remained the same).

But not that a judge rules that this is in fact the case, that whatever inconvenience may have occured didn't stop any free speech, but may have caused it to be made in a slightly different manner.

So now, which one is it Mike? Is the seizure of the domain just "taking down a street sign" or did they somehow take away their virtual printing press? Please choose one so we can figure out what side of the debate you are really on, and then you can tell us that either this post is full of beans, or your previous ones are.

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The point I believe is that when a domain name is seized the publishers behind the site can still put their content out onto the web. If the purpose of seizing the domain is to remove the content then it is effectively "taking down a street sign". The content is still out there for any who know how to get there.

But thats the catch. If you take down the street signs then most people will not know how to find you. To keep the printing press vs street sign analogy going... a domain name seizure does not remove the virtual print press, it just moves you into a vast and incredibly isolated field where few people if any will ever find you (unless they are exceptionally persistent and technically inclined).

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When the domains were seized, there was a lot of discussion here. For the most part, it seems that the seizures weren't of anything significant (no servers, no content, no "printing press" as it were, just that the sign on the front door with the address was taken down (but still accessible to anyone who knew where to look, the IP remained the same).

I think that's misleading. The IP address that the domain name pointed to remained the same, but you couldn't reach the site by typing in the IP address. The government took control of both the domain name and the underlying IP address.

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The domain name was registered in the U.S. The servers were in Canada. Not sure about the hosting company.

Either way, I think there's been some confusion about whether the Rojadirecta website was still accessible after the seizure of the domain name via its IP address. I've seen Mike and others say that the site was available by typing in the IP address. I tried doing this right after the seizures and I got the seizure notice. I'm not sure exactly what the deal is with that.

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It was, I spent the afternoon and following day streaming US sports that I can't get in the UK, I'd have prefered to pay for them but living in the UK no one in the US wants to take my money, they just tell me I can't view the streams... ho, hum.

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caro.net (who the block of IPs is assigned to) shows their data center in North Carolina. If the IP address was "US based" it isn't shocking that it wasn't available. It would be a clear indication that the "legal in Spain" argument doesn't hold anywhere near as much water as it might have, does it?

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Stealing someone else's work is not FREE SPEECH

What is free speech: Writing a letter to a congressman. Holding a demonstration. Writing a book.

What isn't: Telling someone how and/or where to commit a crime. Telling someone how to screw over the free speech rights of someone else by explaining how not to pay a fair share.

Don't insult the memory of Martin Luther King, Peter Zenger, Thomas Jefferson, Daniel Ellsberg, and many others who fought for REAL free speech rights. Distributing the instructions for how to commit a crime is NOT free speech.

Re: Stealing someone else's work is not FREE SPEECH

" Telling someone how to screw over the free speech rights of someone else by explaining how not to pay a fair share."

There's no artist rights in law. If you can't incentivize people to buy from you, you;re doing it wrong.

"Don't insult the memory of Martin Luther King..."

Let Freedom Ring!

"Peter Zenger"
1st Amendment

"Thomas Jefferson"If a law is unjust, a man is not only right to disobey it, he is obligated to do so.

"Daniel Ellsberg"
... Are you sure you want to discuss a man who felt it right to leak the Pentagon Papers while we hold Brandon Manning without conviction, and compare that to the current situation of filesharing where people still make money but complain that piracy is costing sales?

"Distributing the instructions for how to commit a crime is NOT free speech"

Who's committed a crime, bob? Look at Thomas Jefferson's quote, then get back to me.

Re: Stealing someone else's work is not FREE SPEECH

Don't insult the memory of Martin Luther King, Peter Zenger, Thomas Jefferson, Daniel Ellsberg, and many others who fought for REAL free speech rights. Distributing the instructions for how to commit a crime is NOT free speech.

How about *you* don't insult the memory of Martin Luther King, Peter Zenger, Thomas Jefferson, Daniel Ellsberg, and many others who fought for REAL free speech rights by by using their names to do the opposite while pretending otherwise. Your type makes me sick.

Yeah, not really . . . .

Your newspaper analogy might work better if the printing press were owned by a car dealer, and the printing press was used to print a newsletter about the cars he's got for sale now and then. The court rightly called "bullshit" on the claim that a movie/TV download/streaming site was engaged in important First Amendment activity merely because there was an online forum as part of the web site. Should every web site now just slap up a forum and therefore be able to defeat on First Amendment grounds any interference with the operation of their site?

Personally, I think the lost business argument is much stronger than the First Amendment argument, though the court pretty quickly dispensed with that, too.

The court pointed out not only that the service COULD go elsewhere online, but actually HAD DONE SO, and, at least in the view of the court (which may have been wrong factually, but nobody's claiming the facts are wrong here), seemed to be plugging along, albeit perhaps not as strongly as before.

Nobody was saying the users of the site were prohibted from engaging in their discussions. They just weren't able to do so at a place that was shut down because of a criminal investigation. If someone was running an illegal gambling operation in a building, and the cops shut it down, should the operator be able to raise a First Amendment defense against the shut-down, arguing that his patrons liked to gather in his building to discuss aspects of the horse races they were betting on?

Re: Yeah, not really . . . .

If someone was running an illegal gambling operation in a building, and the cops shut it down, should the operator be able to raise a First Amendment defense against the shut-down, arguing that his patrons liked to gather in his building to discuss aspects of the horse races they were betting on?

Re: Re: Yeah, not really . . . .

I like the bookstore analogy better. Let's say that a bookstore sells legal books, but it also has a section that sells child porn. Can the whole bookstore be shut down without a prior adversarial hearing? I'm not so sure.

Re: Re: Re: Re: Re: Yeah, not really . . . .

Essentially, blocking sites because they might be providing child pornography is against First Amendment principles, and is therefore unconstitutional.

In effect, they ruled that sites that have child pornography on them, but also First Amendment protected speech, cannot be shut down merely because of the child pornography there. At least not without an adversarial hearing, where those sites are allowed to present their cases.

That seems to answer the question of booksellers who also have material on the shelves that includes "child pornography." CDT says shutting those sites (or bookstores) down is unconstitutional.

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CDT v Pappert had to do with inadvertently blocking websites that had no connection whatsoever with child porn.

That's it.

There was a lot more than that in CDT v. Pappert. Some excerpts:

The Act and Informal Notice process are not prior restraints in the traditional sense. They do not prevent speech from reaching the market place but remove material already available on the Internet from circulation. However, they are administrative prior restraints as that term has been interpreted by the Supreme Court. According to the Court, "only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint." Thus, if material protected by the First Amendment is removed from circulation without these procedural protections, the seizure is invalid as a prior restraint.

Defendant argues that fewer procedural protections are required for the removal from circulation of child pornography, as compared with obscenity, because the child pornography determination is easier than the obscenity determination. The Court rejects this argument.

Defendant argues that the Informal Notice process is not subject to constitutional scrutiny because it is informal and not coercive. The Court begins by noting that an informal process cannot be used to effectuate an unconstitutional Act. Thus, because the Court concludes that the Act is unconstitutional, defendant will be enjoined from sending Informal Notices pursuant to the Act. However, even if the Court had upheld the Act, the Informal Notice process would not have survived First Amendment scrutiny for several reasons. First, the Informal Notice process provides even less procedural protection than the statutory system because the determination of pornography is made by law enforcement officials, not a judge. Second, the Informal Notice system is closer to the system of state censorship found unconstitutional in Bantam Books than the "informal contacts" permitted by that case.

That all seems completely relevant to whether "the whole bookstore [can] be shut down without a prior adversarial hearing."

I'm not even going to address the "piracy addict" and "delusional idiot" comments, because obviously you're a Satan-worshipping Nazi mongoloid who rapes kittens.

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WIthout a doubt, the entire book store would be shut down, at least for a time, while it's entire contents are checked for any other illegal material. It is very likely that all of it would be removed and taken as evidence, and searched before being returned.

The store likely would be allowed to re-open, but it might take them weeks or months to get their inventory back, as each piece would have to be checked.

However, and this is key: If the police / enforcement people are able to show cause, they could seize the premises or even take control of the "corrupt enterprise" and put it into a sort of administration status. There are plenty of options here.

In the Rojo care they didn't seize the store or the content, they seized the sign outside. There is very little to say that their free speech rights were significantly harmed, more so that this is a company based in Spain, and I am not sure exactly what free speech rights they even have in the US.

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I think the better analogy is that they chained up the front door, not that they took down the sign outside. Rojadirecta.org and Rojadirecta.com are two websites that no one can go to anymore. Those "bookstores" are shut down. Sure, they can move the "bookstore" to a new location, like they did when they got new domain names, but the original locations are no longer accessible.

While I agree that the bookstore could be shut down while they search for evidence, I don't agree that they could unilaterally shut down the bookstore indefinitely (under a nuisance theory or what have you) awaiting a hearing on the merits. And that's what the government has done here. They've shut down the whole "bookstore" when only part of the "bookstore" is the problem. If the government concedes that the forums are not a problem, then what right do they have to shut them down?

Rojadirecta is arguing that it's their users' First Amendment rights that are being violated, not theirs. It's an interesting argument, I think.

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I think the better analogy is that they chained up the front door, not that they took down the sign outside. Rojadirecta.org and Rojadirecta.com are two websites that no one can go to anymore. Those "bookstores" are shut down. Sure, they can move the "bookstore" to a new location, like they did when they got new domain names, but the original locations are no longer accessible.

Exactly. Arguing that their free speech isn't harmed because they can go do it elsewhere is ludicrous. Like the poster above suggested, banning someone from speaking on planet Earth just because there's a whole universe left would likewise be ludicrous. But, that's the kind of mentality copyright breeds.

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WIthout a doubt, the entire book store would be shut down

Without a doubt, it would not be shut down. That would be unconstitutional prior restraint under Ft. Wayne Books v. Indiana, CDT v. Pappert, Bantam Books v. Sullivan, Freedman v. Maryland, and a ton of other case law.

Re: Yeah, not really . . . .

If someone was running an illegal gambling operation in a building, and the cops shut it down, should the operator be able to raise a First Amendment defense against the shut-down, arguing that his patrons liked to gather in his building to discuss aspects of the horse races they were betting on?

If discussion was all that they were doing, then no. But you already said that they were actually engaged in illegal gambling, not just discussing it. Similarly, if a site is just discussing possibly infringing materials, then that's different from actually engaging in infringement. Clear enough?

hehehe

lawful protests being forcibly displaced into a "designated protest area"

Thats the politest way I've ever seen of someone describing how the police will happily (and quite literally) crush peoples skulls (as has happened to many dozens of people across the US) or have them shot by snipers if they insist on their basic democratic rights!

Since the owners of the site had already stood two Spanish court cases which ruled them in compliance with Spanish law, I wonder just what diplomat they contacted over treaties before seizing the domain?

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It's really strange that in today's motion to dismiss memo Rojadirecta is not arguing any First Amendment issues.

In this 983 petition order, the judge even invited them to make their First Amendment arguments in the motion to dismiss: "Puerto 80 may certainly argue this First Amendment issue in its upcoming motion to dismiss, but the First Amendment considerations discussed here certainly do not establish the kind of substantial hardship required to prevail on this petition."

Yet, there's no First Amendment arguments to be found in the motion to dismiss. Weird. I know the arguments are going to come, but I'm quite surprised that they weren't laid out today. It just adds to the suspense all the more...

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Yet, there's no First Amendment arguments to be found in the motion to dismiss.

Perhaps because such motions are required to be presented on the same day that the seizure was contested, leading Puerto 80 to file motions related to the facts that it did know.

By the way, does anyone else find this alarming? That ICE is allowed to stall for months on end, yet the defendants are required to submit their motion to dismiss on the same day that they receive a major decision in the case?

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Perhaps because such motions are required to be presented on the same day that the seizure was contested, leading Puerto 80 to file motions related to the facts that it did know.

I don't exactly follow you. The initial motion to dismiss from Rojadirecta was due yesterday. The judge had invited them to argue the First Amendment issues in that brief. They didn't do so.

By the way, does anyone else find this alarming? That ICE is allowed to stall for months on end, yet the defendants are required to submit their motion to dismiss on the same day that they receive a major decision in the case?

The parties got together last week with the judge, and they all agreed on a briefing schedule. Rojadirecta agreed that their initial motion to dismiss would be turned in on the 5th. Meanwhile, in the other case between these same two parties, the judge just so happens to issue his ruling on the 983 petition on the 4th. No big deal. It's just briefing schedules and rulings on motions. Happens all the time. Not sure why you thinks it's unusual or unfair.

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If it was in the docket then I missed it (which is entirely possible). I'm not aware of Puerto 80 mentioning it, though.

What's unusual about the timeline?

Obviously, the point I raised above would be one issue. But a larger issue is in how ICE responded to Puerto 80. You can read Puerto's petition for details. Even if ICE's actions are lawful, their timing is unusual - to say the least.

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Sorry, meant to also reply to this:

The judge had invited them to argue the First Amendment issues in that brief.

My point was that Puerto 80 probably thought (reasonably) that the appropriate place to raise First Amendment issues regarding the seizure was when they contested the seizure. The seizure itself has nothing to do with their guilt or innocence, so it simply wouldn't make sense to raise issues regarding the seizures in this brief.

Yet the judge declared that's where those arguments must be raised, and he did so the day the brief was due.

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Rojadirecta had already told the judge that they were planning to brief the First Amendment issues in their motion to dismiss. The prosecutor said that the MTD was the proper place. The judge invited them to make those arguments in the MTD. Everything was lined up for them to make the First Amendment arguments in that brief, yet there's not one mention of it in the brief.

I know these arguments are going to come out, but why didn't they come out in the MTD as all three parties indicated they could/would/should?

Perhaps they'll file an amended MTD, or perhaps they'll raise the issue in a separate lawsuit against the government. I don't know. Seems to me that the time to make those arguments is exactly right now.

The 983 petition that the judge denied was really a narrow issue: Was the seizure causing hardship to anyone's life or livelihoods? That's not the place the challenge the constitutionality of the seizure itself. The forfeiture hearing is the place, and here we are at that place, and NOTHING.

Did you read the motion to dismiss memo? It completely misses the mark, and I think, has 0% chance of being granted. The whole brief goes on and on about how the government can't show that the people behind Rojadirecta are criminal infringers. That may be so, but it's completely irrelevant to the actual issue, which is whether the domain name is property used to commit criminal infringement. The owners of Rojadirecta can be innocent of any crime, yet the property they own be subject to forfeiture if others are using it to commit crimes. Don't they understand this?

Rojadirecta has what, six lawyers working on this? Why are they trying to prove their clients aren't criminals when their clients are not even charged with a crime? That makes no sense to me.

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Rojadirecta had already told the judge that they were planning to brief the First Amendment issues in their motion to dismiss.

I don't know where you're getting this stuff. I just re-read the judge's order, and nowhere was that even claimed.

Puerto 80 raised these issues in its petition on the seizures, but I also re-read that, and they did not claim they would be raising these issues in the motion to dismiss itself. I don't see how they could, since the briefing schedule was set on August 2nd, weeks after that petition was filed.

Did you read the motion to dismiss memo?

Many, many times. Did you?

The whole brief goes on and on about how the government can't show that the people behind Rojadirecta are criminal infringers. That may be so, but it's completely irrelevant to the actual issue, which is whether the domain name is property used to commit criminal infringement.

Did you read ICE's memorandum in opposition to returning the seized domain? It goes on and on about how Rojadirecta is directly infringing. They do not even raise the possibility that Rojadirecta could be innocent of infringement, but that their site is still used for criminal activity.

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I don't know where you're getting this stuff. I just re-read the judge's order, and nowhere was that even claimed.

It wasn't in the judge's order. I'm not sure which document it was in, but it was one filed by Puerto 80. It doesn't really matter though.

Puerto 80 raised these issues in its petition on the seizures, but I also re-read that, and they did not claim they would be raising these issues in the motion to dismiss itself. I don't see how they could, since the briefing schedule was set on August 2nd, weeks after that petition was filed.

I don't understand how it is you think they had time to make all the arguments they made in the motion to dismiss, but they didn't have time to make the First Amendment arguments (again) in that motion. If they weren't ready to file the motion, they wouldn't have agreed to the briefing schedule that they did. I don't think the issue is a lack of time. Clearly, they have some other strategy in mind.

Many, many times. Did you?

It just came out last night, so I was simply asking if you've had time to read it. You can tell that I read it because I started describing what I thought was wrong with it. How could I comment on its substance if I hadn't read it?

Did you read ICE's memorandum in opposition to returning the seized domain? It goes on and on about how Rojadirecta is directly infringing. They do not even raise the possibility that Rojadirecta could be innocent of infringement, but that their site is still used for criminal activity.

If I were Rojadirecta, I would have argued two things in my motion to dismiss: (1) prior restraint, and (2) there's no evidence that the domain names were actually used to commit criminal infringement by anyone.

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It makes no sense to others either.

If RD isn't charged with a crime, then why take the domain name in the first place? Perhaps a circular logic is going on here, but it revolves the domain being taken, RD committed a crime on their domain, but there's little way to prove it.

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If RD isn't charged with a crime, then why take the domain name in the first place?

The issue is whether the domain name is being used to commit crimes, not whether the owners of Rojadirecta were the ones committing the crime. It's like if the cops find the murder weapon at a crime scene. They're going to collect it as evidence, even if it doesn't belong to the killer.

I think Rojadirecta should be focusing on the argument that there's no evidence that anyone uses that site to commit crimes. They shouldn't be focusing on proving their personal innocence when they aren't even being charged with anything.

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The issue is whether the domain name is being used to commit crimes, not whether the owners of Rojadirecta were the ones committing the crime. It's like if the cops find the murder weapon at a crime scene. They're going to collect it as evidence, even if it doesn't belong to the killer.

If a murder occurs in a hotel, the cops don't seize the whole hotel and turn it into a new cop station.

Besides, I think your comparison of copyright infringement to murder in the first place is pretty telling of how the copyright industry is trying to twist things.

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I wasn't saying that copyright infringement is like murder. I was making an analogy pointing out that ownership of the alleged instrumentality of crime doesn't matter. The domain name can be forfeited even if its owners aren't the ones committing criminal infringement.

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I see what you mean. I think the Rojadirecta guys are probably criminals, but under an accomplice or conspiracy theory. I don't think they are direct infringers--they aren't the principals. I get what they're trying to argue. They're saying we're not direct infringers, and the forfeiture statute only applies to direct infringement. But that's not the point. Whether they are the principal, the accomplice, or the conspirator, the property itself--the domain names--is still property used to commit direct infringement, and that makes it forfeitable. The person who owns the property is immaterial. Whether it's seizable in the first place, based on only probable cause (and not an adversarial hearing) is another matter. That's the part I think to be more interesting.

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... the property itself--the domain names--is still property used to commit direct infringement, and that makes it forfeitable.

Except that what was actually seized was the NS record for the domain, and associated A record glue.

NS records are not HTML pages containing hypertext links. Simply not. No matter how much you accuse those hypertext links of being goods used as instruments of criminal infringment, the NS records seized —removed from circulation— are not those goods.

You lawyers and judges can wordsmith and handwave around: You can all agree that the actual details of the technology are "just too geeky" for you refined lords and ladies.

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The exact technical details don't really matter.

Which is exactly why you are being unreasonable.

We don't have to listen to these clueless judges. The only thing you got going for you are guns. And I noticed how worried the military was about not getting paid during the recent debt-ceiling crisis.

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Which is exactly why you are being unreasonable.

How does that make me unreasonable?

We don't have to listen to these clueless judges. The only thing you got going for you are guns. And I noticed how worried the military was about not getting paid during the recent debt-ceiling crisis.

Relax, sheeple. That wolf isn't interested in you, he just wants to be your friend! Now, please look the other way and go back to grazing.

What I mean is stop whining and wait for the court to actually address the constitutional issues before freaking out. Since a possible First Amendment violation is not a "substantial hardship" as the statute defines it, then they lost this petition. That's got nothing to do with whether there is a constitutional issue that remains to be addressed.

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" I think the Rojadirecta guys are probably criminals, but under an accomplice or conspiracy theory."

And I disagree emphatically. They are *ONLY* linking, which does not make them anything but another user on the internet. Now explain why it is that they are criminals for finding content and providing services on the internet that the copyright holders are not providing themselves.

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I think Rojadirecta should be focusing on the argument that there's no evidence that anyone uses that site to commit crimes. They shouldn't be focusing on proving their personal innocence when they aren't even being charged with anything

But even the gov't seems to be entirely focused on Puerto 80 being guilty of criminal copyright infringement. So I think I understand the reasoning for Puerto 80 to point out that it is not.

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But even the gov't seems to be entirely focused on Puerto 80 being guilty of criminal copyright infringement. So I think I understand the reasoning for Puerto 80 to point out that it is not.

I get it to a point. But even if they can show that the owners of Puerto 80 are not themselves criminal infringers, that doesn't mean the property isn't still forfeitable. I think they should have also argued that the government didn't sufficiently plead that anyone used the domain names to commit criminal infringement. That argument might actually win the MTD.

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Rojadirecta had already told the judge that they were planning to brief the First Amendment issues in their motion to dismiss. The prosecutor said that the MTD was the proper place. The judge invited them to make those arguments in the MTD. Everything was lined up for them to make the First Amendment arguments in that brief, yet there's not one mention of it in the brief.

I think the lack of prior restraint in the MTD is because they're now debating the forfeiture, not the seizure. You can make a prior restraint article that forfeiture happened sans trial, but that doesn't make sense in the trial over forfeiture. The government can just argue that the 1st amendment is meaningless in a forfeiture trial, because they're planning to prove that the site is illegal and forfeiture makes sense.

The time to raise the 1st amendment issue was in challenging the seizure, which is why it's troubling that the judge is saying otherwise.

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I think the lack of prior restraint in the MTD is because they're now debating the forfeiture, not the seizure. You can make a prior restraint article that forfeiture happened sans trial, but that doesn't make sense in the trial over forfeiture. The government can just argue that the 1st amendment is meaningless in a forfeiture trial, because they're planning to prove that the site is illegal and forfeiture makes sense.

You bring up a good point. I don't think there is a First Amendment issue with the forfeiture once there's been a full hearing. The First Amendment issue is only with the initial seizure. But still, I don't see what's stopping them from making that argument now. The point isn't moot, so I don't see the government being able to successfully argue that it doesn't matter.

Perhaps their plan is to bring a separate action over the deprivation of their rights. That way, they could have a separate case that focuses solely on the First Amendment issue, rather than mix that issue up with the other issues they want to raise in this case. I dunno. I am really surprised though that they didn't bring it up in the MTD, especially after the judge invited them to.

Free Speech

Seizing a printing press does not keep anyone from publishing. They can still write out what they want to say manually. This is proven by the fact that books existed long before the invention of the printing press.

Right.

And yet, the First Amendment protects the freedom of the press despite the fact that there are other ways for someone to publish something. It is therefore obvious that the intention was to prohibit the government from imposing such restrictions even if they didn't completely silence someone. So, to claim otherwise is demonstrably false. Therefore, seizing a domain name can be a clear first amendment violation even if it doesn't completely silence someone anymore than seizing a printing press would completely silence someone.

Federal judges are sworn to uphold the Constitution of the United States, something the judge in this case isn't doing. I don't know if it is due to ignorance or corruption, but in either case this judge should be removed from the bench. Period.